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RAJ KUMAR SHUKLA versus C/M A.B. VIDHYALAYA INTER COLLEGE, KANPUR NAGAR & OTHERS

High Court of Judicature at Allahabad

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Raj Kumar Shukla v. C/M A.B. Vidhyalaya Inter College, Kanpur Nagar & Others - SPECIAL APPEAL No. 901 of 2006 [2006] RD-AH 13662 (18 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.32

Special Appeal No. 901 of 2006

Raj Kumar Shukla .....Appellant

Versus

Committee of Management, A.B. Vidhyalaya

Inter College, Kanpur and others .....Respondents

******

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This special appeal has been preferred by the petitioner-appellant against the judgment of the Hon'ble Single Judge dated 12.7.2006 in Civil Misc. Writ Petition No. 43611 of 2001 whereby the writ petition filed by the Committee of Management-respondent no.1 has been allowed and the proceeding initiated by the appellant by filing appeal before the Deputy Director of Education has been quashed. Further Civil Misc. Writ Petition No. 6577 of 2005 filed by the appellant challenging the selection process and  the appointment of Prashant Sharma has been dismissed.

We have heard Mr. Manish Goyal, learned counsel for the appellant.

The brief facts giving rise to this appeal are that the appellant claims to be working as Lecturer in A.B.Vidhyalaya Inter College, Kanpur Nagar which is a minority institution. The services of the petitioner-appellant were terminated vide order dated 4.7.1988 against which Civil Misc. Writ Petition No. 13428 of 1988 was preferred by him which was allowed by the Hon'ble Single Judge vide judgment dated 16.3.1999, on the ground that the termination of a teacher of a recognised institution could not be made without the approval of the District Inspector of Schools as required under Section 16-G(3) (a) of the U.P. Intermediate Education Act, 1921 (for short the Act). The Committee of Management of the institution preferred Special Appeal No. 298 of 1999 which was allowed vide judgment dated 15th September, 1999 setting aside the judgment of the Hon'ble Single Judge and it was held that the institution being minority institution, the provision requiring termination of service after prior approval of the District Inspector of Schools is not applicable thereto. The relevant observations made by the Division Bench in the judgment dated 15th September, 1999 is reproduced as under:

"In our opinion the aforesaid observation of the Supreme Court make it clear that hiring and terminating the service of teachers and other staff in an educational institution is a part of management of the institution and hence has the protection of Article 30 of the Constitution. As such no approval is necessary for terminating the service of teachers and other staff in minority educational institution.

In view of the said judgment of the Supreme Court the aforesaid Full Bench decision in J.K.Kalra's case is no longer good law. The appeal is hence allowed. The order of the learned Single Judge is set aside including all consequential orders passed by the authorities."

The petitioner-appellant thereafter preferred Special Leave Petition No. 551-552 of 2000 which was disposed vide order dated 10th August, 2001 by the Hon'ble Apex Court with the following orders:

"The view taken by the High Court appears to be correct.  Therefore, no interference is called for with the same. The special leave petitions are dismissed. It is made clear that neither the orders of the High Court nor our order will come in the way of the petitioner pursuing any other remedy that may be permissible under law."

Though the Hon'ble Apex Court permitted the petitioner-appellant to pursue such remedy as permissible under law, the petitioner-appellant preferred an appeal under Section 16-G(3)(c) of the Act before the Deputy Director of Education against the termination order dated 4.7.1988. The Committee of Management of the institution approached this Court by filing Civil Misc. Writ Petition No. 43611 of 2001 challenging the proceeding initiated by the appellant by filing appeal before the Deputy Director of Education on the ground that since the institution is a minority institution, the aforesaid proceeding before the Deputy Director of Education is also not maintainable. The aforesaid writ petition was entertained and further proceedings before the Deputy Director of Education were stayed vide order dated 19.12.2001. During the pendency of the aforesaid writ petition it appears that the institution took steps for filling vacancy to the post of Lecturer in Chemistry, the post from which the petitioner's services were terminated and, therefore, the petitioner-appellant preferred another Civil Misc. Writ Petition No. 6577 of 2005 challenging the entire selection process seeking a direction from this Court restraining the institution from making any appointment on the post of Lecturer in Chemistry in the aforesaid institution. Both the writ petitions have been heard together by the Hon'ble Single Judge vide judgment under appeal and the writ petition of the Committee of Management has been allowed but the writ petition of the petitioner-appellant has been dismissed.

Sri Manish Goyal, learned counsel for the appellant vehemently contended that the Hon'ble Single Judge has erred in law in quashing the appellate proceeding initiated before the Deputy Director of Education under Section 16-G (3) (c) of the Act for the reason that the Hon'ble Apex Court has permitted the appellant to pursue such remedy as permissible under law and, therefore, he rightly preferred the aforesaid appeal before the Deputy Director of Education. He further contended that the Hon'ble Single Judge has erred in law in observing that the matter pertaining to the termination of the petitioner-appellant after dismissal of SLP before the Hon'ble Apex Court on 10th August, 2001 attained finality and the same could not have been re-agitated.

To appreciate the aforesaid submission it would be appropriate first to consider the scope of Section 16-G(3)(c) to find out whether the aforesaid remedy was available to the petitioner under law.  Section 16-G (3) is reproduced below:

"3(a) No Principal, Headmaster or teacher may be discharged or removed or dismissed from service or reduced in rank or subject to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Inspector. The decision of the inspector shall be communicated within the period to be prescribed by regulations.

(b) The Inspector may approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the management.

Provided that in the cases of punishment, before passing orders, the inspector shall give an opportunity to the Principal, the Headmaster or the teacher to show cause within a fortnight of the receipt of the notice why the proposed punishment should not be inflicted.

(c) Any party may prefer an appeal to the Regional Deputy Director, Education, against an order of the Inspector under Clause (b), whether passed before or after the commencement of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one month from the date of communication of the order to that party, and the Regional Deputy Director may, after such further enquiry, if any, as he considers necessary, confirm, set aside or modify the order, and the order passed by the Regional Deputy Director shall be final. In case the order under appeal was passed by the very person holding the office of the Deputy Director while acting as Inspector, the appeal shall be transferred by the order of the Director to some other Regional Deputy Director for decision, and the provisions of this clause shall apply in relation to decision by that other Regional Deputy Director as if the appeal had been preferred to himself.

(d) All appeals  preferred under clause (c), as it stood before the date of commencement of the Uttar Pradesh Intermediate Education (Sansodhan) Adhiniyam, 1966, and pending decisions immediately before the said date shall be decided by the Regional Deputy Director, Education, in accordance with the clause (c) as substituted by the said Adhiniyam."

A perusal of the aforesaid provision shows that the power of management to terminate the services of Principal/ Headmaster or Teacher of their institution is restricted in the manner that no termination shall be made except with the prior approval in writing of the Inspector is obtained. The Inspector under Clause-(b) of Section 16-G(3)  of the Act is empowered to approve or disapprove or reduce or enhance the punishment or approve or disapprove of the notice for termination of service proposed by the Management. However, the Inspector is supposed to pass an order only after giving opportunity of hearing to the concerned teacher. Clause(c) of sub-section (3) of Section 16-G of the Act provides an appeal before the Regional Deputy Director of Education against an order passed under Clause-(b) of Section 16-G(3) of the Act. There is no power of appeal empowering the Regional Deputy Director of Education to entertain against any order passed by the Committee of Management against a teacher. The only right of appeal conferred under Section 16-G(3) (c) of the Act is in respect to an order passed by the Inspector under Section 16-G(3)(b)  of the Act. Admittedly, there is no order of inspector passed in the case in hand against which the petitioner-appellant could have filed appeal under Section 16-G (3)(c) of the Act. The appeal is not a matter of right but is conferred and governed by the provisions of the statute. If there is no provision of appeal, it cannot be said that merely since the authority is there, the appeal can be preferred.

In this view of the matter, it is apparent that taking advantage of the order dated 10.8.2001 passed by the Hon'ble Apex Court permitting the appellant to pursue such remedy as permissible under law, he could not have invoked the appellate jurisdiction of Regional Deputy Director of Education under Section 16-G(3) (c) of the Act,  since the aforesaid remedy was not available in law. The Hon'ble Single Judge has also taken the same view by observing that the filing of appeal was not permissible to the petitioner-appellant. There is another aspect of the matter, the institution being minority institution, in the matter of appointment and termination of the service of a teacher, the provisions pertaining to approval was held to be inapplicable to such minority institution. Thus, obviously, the restrictions under Section 16-G(3) (a)(b) of the Act were not applicable to the institution in question.  In these circumstances, provisions of Section16-G (3) (c) also could not have been made applicable and this issue having already attained finality, it was not permissible to the appellant to re-agitate the same by preferring the appeal before the Deputy Director of Education.

No doubt, the Hon'ble Apex Court did permit the appellant to pursue such remedy as permissible under law but that would  not enable the appellant to take recourse to such remedy which is not permissible under law or where the proceeding are not maintainable at all.

However, Sri Manish Goyal, learned counsel for the appellant, relying on the judgment of the Hon'ble Apex Court rendered in the case of Indian Oil Corporation Ltd. Vs. State of Bihar and others, AIR 1986 SC 1780 and Hoshnak Singh Vs. Union of India and others, AIR 1979 SC1329 sought to argue that the Hon'ble Single Judge proceeded with the assumption that the order of termination has attained finality because of the order of the Hon'ble Apex Court and the same cannot be interfered with.

In our view, none of the aforesaid judgments lends support to the petitioner-appellant in the case in hand. It was held in the case of Indian Oil Corporation Ltd. Vs. State of Bihar and others (supra) that if the writ petition is dismissed on the ground of alternative remedy, it is always permissible to the petitioner-appellant to avail other remedy and the dismissal of the writ petition will not operate as res-judicata.

To the same effect is the law laid down in the case of Hoshnak Singh Vs. Union of India and others (Supra). However, the issue involved in the case in hand is totally different. Here the Hon'ble Apex Court, while confirming the judgment, permitted the petitioner-appellant to pursue such remedy as permissible in law. Hence the remedy, which is not permissible in law, cannot be availed by the appellant. In our view, the Hon'ble Single Judge has also rightly held that the appeal preferred by the appellant before the Regional Deputy Director of Education under Section 16-G(3)(c ) of the Act was incompetent and liable to be quashed.

We, therefore, do not find any fault in the judgment/order under appeal.  This appeal, therefore, lacks merit. It is accordingly, dismissed.

Dated:18.8.2006

SKM


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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